Chapter 1Introduction and background

1.1On 14 September 2023, the Senate referred the Legalising Cannabis Bill 2023 (theBill) to the Legal and Constitutional Affairs Legislation Committee (thecommittee) for inquiry and report by 31 May 2024.[1] The Bill would legalise cannabis for adult recreational use in Australia[2] and was introduced into the Senate as a private senator’s bill by Senator David Shoebridge.[3]

Conduct of the inquiry and acknowledgement

1.2In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals, inviting them to make a submission by 3 November 2023. The committee received 201 submissions, which are listed at Appendix 1.

1.3The committee held public hearings in Brisbane on 21 February 2024 and in Canberra on 10 May 2024. A list of the witnesses who appeared at the hearings is at Appendix 2.

1.4The committee thanks those individuals and organisations who made submissions and who gave evidence at the public hearing.

Structure and scope of the report

1.5This report comprises two chapters:

Chapter 1 provides background information relating to the Bill, identifies its key proposals and related provisions, and notes consideration of the Bill undertaken by other parliamentary committees; and

Chapter 2 examines some of the key concerns raised in relation to the Bill before setting out the committee’s findings and recommendations.

Note on references

1.6In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.

Background and purpose of the Bill

1.7In Australia, the Australian government treats cannabis as a medicine and as a narcotic, with its supply and use controlled by multiple Acts.[4] The recreational use of cannabis is not permitted under federal law but has been legalised to varying degrees in some states and territories.[5]

1.8Every three years the Australian Institute of Health and Welfare conducts the National Drug Strategy Household Survey (NDSHS). This survey collectsinformation from teenagers and adults across Australia about tobacco, alcohol and other drugs, and the respondents’ use of these drugs.[6]

1.9The National Drug Strategy Household Survey 2019 (NDSHS 2019)revealed that,in 2019, cannabis was the most commonly used illicit drug, with 11.7 per cent of respondents aged 14 years and over having used it in the past 12 months. Thefigure was much higher for Aboriginal and Torres Strait Islander people at 16.0 per cent.[7]

1.10The NDSHS 2019 also reported that support for the legalisation of cannabis increased from 35 per cent in 2016 to 41 per cent in 2019, almost double the level of support in 2007 (21 per cent).[8]

1.11Internationally, several countries have decriminalised and/or legalised cannabis for recreational use (Figure 1.1, marked in green and cornflower blue, respectively).[9] However, many other countries have not adopted either of these approaches (Figure 1.1, marked in mauve-pink) and within some countries—such as the United States—there is great diversity in approach among the state jurisdictions.[10]

Source: T. Allen, ‘World Map of Cannabis Legality’, 19 April 2023, https://thcaffiliates.com/legal-status-maps/world/ (accessed 6 January 2024).

1.12In January 2023, the Parliamentary Budget Office (PBO) costed the Australian Greens proposal to legalise the production and sale of recreational cannabis in Australia. Over 10 years, the policy was forecast to generate $28.2 billion (sales based on excise at 15 per cent) or $36.8 billion (sales based on excise at 25 per cent).[11]

Key provisions

1.13The Bill comprises six Parts: the more substantive provisions are contained in Parts 3–5 of the Bill.[12]

Cannabis Australia National Agency

1.14Part 5 of the Bill would establish the Cannabis Australia National Agency (theAgency, also referred to as CANA) as a listed entity, with the Chief Executive Officer being the accountable authority.[13] The CANA would have multiple functions:

(a)to regulate regulated cannabis activities in the broader public interest, including to maximise safety and to minimise harm associated with those activities;

(b)to establish and maintain the Register;

(c)to register cannabis strains on the Register;

(d)to issue licences authorising regulated cannabis activities;

(e)to oversee activities authorised by licences;

(f)to be available to regularly test cannabis products involved in regulated cannabis activities, including for strength and contamination;

(g) to regularly seek detailed national data about regulated cannabis activities;

(h) to approve responsible service of cannabis training and to register training providers authorised to deliver the training;

(i)to provide advice to the Minister about the operation of this Act;

(j)any other functions conferred on the Agency by this Act, the regulations or another law of the Commonwealth;

(k)to do anything incidental or conducive to the performance of any of the above functions.[14]

1.15Clause 36 of the Bill would provide the CANA with the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Registration of cannabis strains

1.16Clause 11 of Part 3 of the Bill would require the CANA to establish and maintain a Register of Cannabis Strains (the Register).[15] The term ‘cannabis strain’ would be defined to mean:

a cannabis plant grouping that is distinguishable from another cannabis plant grouping on the basis of one or more botanical, ethnobotanical or genetic identifiers.[16]

1.17The CANA would be empowered to register a cannabis strain on its own initiative or on application by a person (other than an excluded person).[17] Theterm ‘excluded person’ would mean:

(a) a person that engages in one or more of the following:

(i) the production or manufacture of alcohol or alcohol products;

(ii) the production or manufacture of tobacco or tobacco products;

(iii) the production or manufacture of pharmaceutical products (other than cannabis for medicinal or scientific purposes); or

(b) a person of a kind prescribed by the regulations;

and includes any related entity (within the meaning of the Bankruptcy Act 1966) of such a person.[18]

1.18In deciding whether to register a strain, the CANA must take into account:

for registrations on its own initiative, whether it is necessary to register a strain to facilitate the issuing of ‘licences’;

for applications to register a strain, any matters prescribed by the regulations.[19]

1.19A person (other than an excluded person) would be able to apply to the CANA for registration of a cannabis strain. The application would have to meet any requirements specified in the regulations, including the payment of any prescribed fee.[20]

1.20The Bill would enable the regulations to make provision for and in relation to any other matter relating to the Register and the registration process. This would include the details to be included on the Register, time limits for making registration decisions, and the right to review by the Administrative Appeals Tribunal.[21]

Regulation of cannabis

1.21Part 4 of the Bill contains four divisions:

Division 1 would regulate ‘cannabis’ by making it an offence to engage in certain activities, except in permitted circumstances or if the activity is authorised by a licence issued by the CANA;[22]

Division 2 would provide that ‘cannabis products’ can be possessed without criminal consequences in certain circumstances;[23]

Division 3 would enable the CANA to issue licences that authorise ‘regulated cannabis activities’ to be undertaken in accordance with the licence;[24] and

Division 4 would enable the CANA to determine labelling, packaging and storage requirements for cannabis products.

1.22Chapter 2 of the report examines some of the proposed provisions in detail.

Examination by other parliamentary committees

1.23When examining a bill or bills, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).

1.24The Scrutiny of Bills Committee examined the Bill and noted that there might be concerns in relation to three matters: immunity from civil liability, a reversal of the evidential burden of proof, and the inclusion of significant matters in delegated legislation.[25]

1.25The Human Rights Committee examines bills and legislative instruments for compatibility with human rights and reports its findings to both Houses of Parliament. The Human Rights Committee examined and made no comment on the Bill.[26]

Footnotes

[1]Journals of the Senate, No. 72, 14 September 2023, pp. 2042–2044.

[2]Legalising Cannabis Bill 2023 (the Bill), Explanatory Memorandum (EM), p. [2].

[3]Journals of the Senate, No. 64, 10 August 2023, p. 1837.

[4]Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Criminal Code and Other Legislation Amendment (Removing Commonwealth Restrictions on Cannabis) Bill 2018, September 2018, Department of Health, Submission 32, p. 2.

[5]For an indication of the position in each jurisdiction, see: M. Pistelli, ‘A State-by-State Guide to Cannabis in Australia‘, Investing News Network, 12 December 2023, https://investingnews.com/guide-to-cannabis-in-australia (accessed 6 January 2023).

[6]Australian Institute of Health and Welfare (AIHW), ‘National Drug Strategy Household Survey’, www.aihw.gov.au/about-our-data/our-data-collections/national-drug-strategy-household-survey (accessed 15 November 2023). Note: the National Drug Strategy Household Survey 2022–2023 is not referred to in this report as submissions and evidence referred to the previous survey.

[7]AIHW, National Drug Strategy Household Survey 2019 (NDSHS 2019), 2020, pp. viii and 50 and Table 8.1, www.aihw.gov.au/reports/illicit-use-of-drugs/national-drug-strategy-household-survey-2019/contents/summary (accessed 15 November 2023).

[8]AIHW, NDSHS 2019, 2020, p. 78 and Table 9.26. Also see: AIHW, National Drug Strategy Household Survey 2016, Detailed finings, 2017, p. 128 and Table 9.25, www.aihw.gov.au/reports/illicit-use-of-drugs/2016-ndshs-detailed/summary (accessed 15 November 2023).

[9]Note: ‘decriminalisation’ means criminal charges are not applied for possession and personal use; ‘legalisation’ means that there are no penalties for possession and personal use: Alcohol and Drug Foundation, https://adf.org.au/talking-about-drugs/law/decriminalisation/overview-decriminalisation-legalisation/ (accessed 4 March 2024).

[10]T. Allen, ‘Where in the world is cannabis legal’, 2 November 2023, https://thcaffiliates.com/legal-status-maps/ (accessed 6 January 2024).

[11]Parliamentary Budget Office (PBO), ‘Policy costing, Legalise Cannabis Nationally’, Senator David Shoebridge, 12 January 2023, Attachment A, pp. 7–13, www.pbo.gov.au/sites/default/files/2023-03/Legalise%20Cannabis%20Nationally%20PDF.pdf (accessed 11 October 2023). Note: the PBO provided an earlier costing: ‘Tax and regulate cannabis’, Senator Richard Di Natale, 23 April 2018, www.pbo.gov.au/publications-and-data/publications/costings/tax-and-regulate-cannabis (accessed 19 January 2024).

[12]Note: Part 1 deals with preliminary matters; Part 2 deals with interpretation; Part 6 deals with miscellaneous matters.

[13]Bill, cl. 33.

[14]Bill, cl. 35.

[15]Bill, subcl. 11(1). Also see: Bill, cl. 7 (‘Agency’).

[16]Bill, cl. 7 (‘cannabis strain’). Note: there are traditionally three cannabis strains: ‘indica’, ‘sativa’ and ‘hybrid’. However, cannabis experts currently recognise between 700–800 unique strains.

[17]Bill, subcl. 12(1).

[18]Bill, cl. 7 (‘excluded person’).

[19]Bill, subcl. 12(2)–(3). Note: the term ‘licence’ is defined in clause 28 of the Bill.

[20]Bill, cl. 13.

[21]Bill, cl. 15. Note: at the time of writing, a package of legislation to replace the Administrative Appeals Tribunal is before the Parliament.

[22]Note: the term ‘cannabis’ is defined in clause 7 of the Bill.

[23]Note: the term ‘cannabis products’ is defined in clause 7 of the Bill.

[24]Note: the term ‘regulated cannabis activities’ is defined in clause 10 of the Bill.

[25]Standing Committee for the Scrutiny of Bills, Scrutiny Digest No. 10 of 2023, 6 September 2023, p.13.

[26]Parliamentary Joint Committee on Human Rights, Report 9 of 2023, 6 September 2023, p. 6.